United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE
a habeas case brought pursuant to 28 U.S.C. § 2254.
Michigan prisoner Eric Anthony Miller
(“Petitioner”) was convicted of three counts of
first-degree criminal sexual conduct, Mich. Comp. Laws §
750.520b(1)(c), first-degree home invasion, Mich. Comp. Laws
§ 750.110a(2), unlawful imprisonment, Mich. Comp. Laws
§ 750.349b, and aggravated stalking, Mich. Comp. Laws
§ 750.411i, following a jury trial in the Lapeer County
Circuit Court. He was sentenced in 2010 to concurrent terms
of 1) 18 years, 9 months to 40 years imprisonment on the
criminal sexual conduct convictions; 2) 7 years, 11 months to
20 years imprisonment on the home invasion conviction; 3) 7
years, 2 months to 15 years imprisonment on the unlawful
imprisonment conviction; and 4) 2 to 5 years imprisonment on
the stalking conviction.
pro se petition, Petitioner raises claims concerning
the sufficiency of the evidence, the admission of certain
evidence, the denial of a directed verdict motion, the denial
of a resentencing motion, the scoring of the sentencing
guidelines, the effectiveness of trial and appellate counsel,
the conduct of the prosecutor, the jury instructions, the
failure to produce a witness, and the failure of the trial
judge to recuse himself. For the reasons set forth, the Court
denies the petition for a writ of habeas corpus. The Court
also denies a certificate of appealability and denies leave
to proceed in forma pauperis on appeal.
convictions arise from stalking and sexually assaulting his
former girlfriend at her home in Lapeer County, Michigan in
2009. The Michigan Court of Appeals described the relevant
facts as follows:
The complaining witness testified that she and defendant had
had an intimate relationship, but that when she wished to end
it, defendant contacted her with such persistence, both in
person and by electronic means, that she came to feel
harassed and threatened.
The complainant further testified that, on the night of
November 2-3, 2009, when she was in her bedroom and in the
early stages of sleep, defendant appeared, undressed and
brandishing a knife. According to the complainant, defendant
threatened her with the knife, forcibly penetrated her vagina
with his penis, and then forcibly penetrated her anus with
his penis. The complainant continued that defendant
admonished her that they were going to get back together,
that she was going to tell that to her friends and family,
and that she was otherwise going to abide by his terms and
conditions. Then, according to the complainant, in response
to some impatience, defendant forcibly inserted a sexual aid
into her vagina, and left it there for at least ten minutes
while he continued his threats and demands. Before leaving,
defendant told the complainant not to speak of the assault to
anyone, and spoke of consequences should she fail to accede
to that and his other terms and conditions.
The complainant testified that in the days immediately
following, defendant was constantly initiating
communications, by phone and text messaging, and repeatedly
insisting that she see him, and threatening her with
consequences if she crossed him.
People v. Miller, No. 300209, 2012 WL 2362478, *1
(Mich. Ct. App. June 21, 2012)(unpublished).
he was sentenced, Petitioner appealed his conviction to the
Michigan Court of Appeals. In that appeal Petitioner
challenged the sufficiency of the evidence, the admission of
certain evidence, the scoring of the sentencing guidelines,
the effectiveness of trial counsel, the prosecutor's
charging decision, the jury instructions, the failure to
produce a witness, and the failure of the trial court to
recuse itself. The court denied relief on those claims and
affirmed Petitioner's convictions and sentences.
Id. at *2-13. Petitioner filed an application for
leave to appeal with the Michigan Supreme Court, which was
denied in a standard order. People v. Miller, 493
Mich. 917, 823 N.W.2d 602 (2012).
then filed a motion for relief from judgment with the state
trial court raising claims about the effectiveness of his
trial and appellate counsel and the prosecutor's conduct.
The trial court denied his motion finding that the claims
lacked merit and that Petitioner failed to establish cause
and prejudice under Michigan Court Rule 6.508(D). People
v. Miller, No. 09-010234-FC(MH) (Lapeer Co. Cir. Ct.
July 13, 2013). Petitioner filed a delayed application for
leave to appeal challenging the trial court's procedural
ruling, which was also denied for lack of merit. People
v. Miller, No. 317613 (Mich. Ct. App. Oct. 4, 2013).
Petitioner then filed an application for leave to appeal with
the Michigan Supreme Court, which was denied pursuant to
Michigan Court Rule 6.508(D). People v. Miller, 495
Mich. 978, 843 N.W.2d 763 (2014).
then filed this federal habeas petition in which he raises
the following claims:
I. Due Process Violation - Insufficient Evidence to Convict
II. Due Process Violation - Improper Trial Court Rulings
III. Due Process Sentencing Violation - Incorrect Statutory
Sentencing Guidelines Calculation
IV. Sixth Amendment Violation - Ineffective Assistance of
V. Due Process Violation - Prosecutorial Misconduct
VI. Due Process Violation - Incorrect Jury Instruction
VII. Confrontation - Failure to Produce Witness
VIII. Due Process Violation - Failure of Trial Judge to
IX. Due Process Violation - Insufficient Evidence to Convict
X. Sixth Amendment Violation - Ineffective Assistance of
XI. Sixth Amendment and Due Process Violations - Ineffective
Assistance of Appellate Counsel
has filed an answer to the petition contending that it should
be denied. Petitioner has filed a reply to that answer.
Standard of Review
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), codified at 28 U.S.C. § 2241
et seq., sets forth the standard of review for
federal courts considering habeas petitions brought by
prisoners challenging their state court convictions. The
relevant provision states:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding
28 U.S.C. §2254(d) (1996).
state court's decision is ‘contrary to' . . .
clearly established law if it ‘applies a rule that
contradicts the governing law set forth in [Supreme Court
cases]' or if it ‘confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme]
Court and nevertheless arrives at a result different from
[that] precedent.'” Mitchell v. Esparza,
540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams
v. Taylor, 529 U.S. 362, 405-06 (2000)); see also
Bell v. Cone, 535 U.S. 685, 694 (2002). A federal habeas
court may therefore grant the writ under § 2254(d)(1) if
the state court correctly identifies the governing legal
principle from Supreme Court precedent, but
“unreasonably applies that principle to the facts of
petitioner's case.” Wiggins v. Smith, 539
U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at
413); see also Bell, 535 U.S. at 694. The
state court's application, however, must have been
‘objectively unreasonable, ' and more than just
incorrect or erroneous. Wiggins, 539 U.S. at 520-21
(citations omitted); see also Williams, 529 U.S. at
2254(d)(1) also limits a federal court's review to
whether the state court's decision comports with clearly
established federal law as determined by the Supreme Court
at the time the state court rendered its decision.
Williams, 529 U.S. at 412; see also Knowles v.
Mirzayance, 556 U.S. 111, 122 (2009). Federal circuit or
district court cases do not constitute clearly established
Supreme Court law and cannot provide the basis for federal
habeas relief. See Parker v. Matthews, 567 U.S. ___,
132 S.Ct. 2148');">132 S.Ct. 2148, 2155 (2012) (per curiam); see also Lopez
v. Smith, ___ U.S. ___135 S.Ct. 1, 2 (2014) (per
curiam). But lower federal courts may be useful in assessing
the reasonableness of a state court's decision.
Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007)
(citing Williams v. Bowersox, 340 F.3d 667, 671 (8th
Cir. 2003)); Dickens v. Jones, 203 F.Supp.2d 354,
359 (E.D. Mich. 2002). The state court decision need not cite
the Supreme Court cases or reflect any awareness of those
cases creating this clearly established law, “so long
as neither the reasoning nor the result of the state- court
decision contradicts them.” Early v. Packer,
537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at
federal habeas review is “limited to the record that
was before the state court.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011). And the state
court's factual determinations are presumed correct on
federal habeas review, 28 U.S.C. § 2254(e)(1); though a
petitioner may rebut this presumption with clear and
result is a “highly deferential standard” for
federal habeas court reviewing state court rulings.
Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting
Lindh, 521 U.S. at 333, n. 7; Woodford v.
Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).
Sufficiency of the Evidence, Directed Verdict (Habeas Claims
I, II, IX)
asserts that he is entitled to habeas relief because the
prosecution presented insufficient evidence to support
Petitioner's convictions; specifically that the
prosecution failed to present DNA or biological evidence and
that the victim was not a credible witness. He also argues
that the trial court erred in denying his directed verdict
motion. In particular, Petitioner asserts that the
prosecution failed to present DNA or biological evidence and
that the victim was not a credible witness. Respondent
contends that these claims lack merit.
federal due process clause “protects the accused
against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with
which he is charged.” In re Winship, 397 U.S.
358, 364 (1970). The question on a sufficiency of the
evidence claim is “whether, after viewing the evidence
in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979). The Jackson
standard must be applied “with explicit reference to
the substantive elements of the criminal offense as defined
by state law.” Brown v. Palmer, 441 F.3d 347,
351 (6th Cir. 2006) (quoting Jackson, 443 U.S. at
324 n. 16).
federal habeas court views this standard through the
framework of 28 U.S.C. § 2254(d). Martin v.
Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). Thus, under
the AEDPA, challenges to the sufficiency of the evidence
“must survive two layers of deference to groups who
might view facts differently” than a reviewing court on
habeas review - the factfinder at trial and the state court
on appellate review - as long as those determinations are
reasonable. Brown v. Konteh, 567 F.3d 191, 205 (6th
Cir. 2009). “[I]t is the responsibility of the jury -
not the court - to decide what conclusions should be drawn
from the evidence admitted at trial.” Cavazos v.
Smith, ___ U.S. ___, 132 S.Ct. 2, 4 (2011) (per curiam).
“A reviewing court does not re-weigh the evidence or
re-determine the credibility of the witnesses whose demeanor
has been observed by the trial court.” Matth ...